Monday, May 23rd, 2016

Remand for resentencing to consider the difference between substantive conspiracy liability and the scope of relevant conduct for guidelines purposes; Remand for resentencing under § 3582(c)(2)

The Second Circuit issued four summary orders in criminal cases today.

United States v. Rigo, 15-1914, remanded the case for resentencing. The Second Circuit held that the district court committed plain error in calculating the loss amount for the purposes of determining the guideline range. The Circuit explained that “the scope of conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” Order at 2. The “emphasis in substantive conspiracy liability is the scope of the entire conspiracy” but the guidelines are concerned with “the scope of the individual defendant’s undertaking.” Id. (emphasis in original). In other words, even if the acts of co-conspirators were foreseeable to the defendant, they do not constitute relevant conduct for guidelines purposes if they were “not within the scope of the defendant’s agreement.” Id. at 3. The district court erred in holding that “because Rigo pled guilty to participating in a conspiracy, he is equally liable for the acts of his coconspirators,” without determining that the acts of his coconspirators were within the scope of his agreement to participate in the conspiracy. Id. The Circuit remanded for resentencing, making clear that expressed no view on what conclusion the district court should reach regarding the scope of the defendant’s agreement.

United States v. McCall, 15-1814, vacated the district court’s denial of a sentencing reduction under 18 U.S.C. § 3582(c)(2) and remanded for further proceedings. The Court accepted the parties’ position that Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2010), governed the case. At issue in the case was whether the Rule 11(c)(1)(C) plea agreement in the case was “based on” a guideline range. The parties had entered into a plea agreement which calculated an advisory guideline range of 108-135 months and agreed that a sentence of 108 months was the “appropriate” sentence. It turned out that the parties had miscalculated the guideline range, which actually was 121-151 months. The district court accepted the plea agreement and sentenced the defendant to 108 months. The Court explained that this did not alter the Freeman analysis in the case and held that the defendant was eligible to be resentenced because the 108-month sentence agreed upon in the plea agreement was based upon a guideline range that was subsequently lowered by the Sentencing Commission.

United States v. DiBiase, 15-751, affirmed the judgment of the district court. The Second Circuit held that the district court properly determined that there was a sufficient factual basis for the guilty plea and advised the defendant he faced a mandatory minimum prison term of fifteen years. The Court held that the government’s sentencing advocacy did not breach the plea agreement and declined to address DiBiase’s ineffective assistance of counsel claim on direct review.

United States v. Pierce, 14-1945, simply affirms the district court without discussing any of the issues raised on appeal.

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